Citation Nr: 1335618 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-17 541 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for eye disability residual to a shell fragment wound to the face/eyes. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his wife, and daughter ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to August 1952, to include service in Korea during the Korean War. His awards and decorations include the Combat Infantryman Badge (CIB), among others. He also sustained combat-related shell fragment wound (SFW) injuries to his legs. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2004 rating decision in which the RO declined to reopen a previously denied claim for service connection for residuals of shell fragment wounds to the face and eyes. The Veteran perfected an appeal of that denial. In March 2010, the Board reopened the claim for service connection for residuals of a shell fragment wound to the eyes, and remanded the claim for service connection, on the merits, for additional action. The claim was remanded again by the Board in August 2011 and November 2012-most recently, for the purpose of scheduling the Veteran for a hearing before a Veterans Law Judge in light of the fact that the Judge who presided at the August 2008 hearing had since retired from the Board. See 38 C.F.R. § 20.707 (2013). In August 2013, the Veteran, his wife and daughter testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of this hearing is of record. During the hearing, the undersigned advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In light of the evidence and assertions of record, and in view of what has actually been adjudicated, the Board has characterized the de novo claim for service connection remaining on appeal, as reflected on the title page. The Board notes, at the outset, all evidence of record has been reviewed, to include in the Veteran's paper, rebuilt claims file and the paperless, electronic (Virtual VA) file. The Virtual VA file contains the Board hearing transcript, a copy of which has been added to the paper claims record, but contains no other pertinent information that is not physically of record. As a final preliminary matter, the Board notes that, during the Board hearing, the Veteran raised the matter of his entitlement to service connection for headaches. However, as this matter has not been adjudicated, it is not properly before the Board, and is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. Although there is no official evidence documenting that the Veteran sustained a shell fragment to the face/eyes in service, he has asserted experiencing such an injury, and has offered lay statements/testimony in support. 2. There is no competent, probative evidence even suggesting that there exists a nexus between any current eye/face disability and a shell fragment wound sustained in service; the only medical opinion evidence addressing the etiology of current eye problems tends to weigh against the claim,. CONCLUSION OF LAW The criteria for service connection for eye disability residual to a shell fragment wound to the face/eyes are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 3,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the Appeals Management Center (AMC))). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a July 2004 pre-rating letter, while in the context of a claim to reopen with respect to the claim for service connection for residuals of a shell fragment wound to the eyes, the RO also provided general notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. After the Board reopened and remanded the claim, more specific notice with respect to the reopened claim for service connection for residuals of a shell fragment wound to the eyes was provided in a December 2010 letter that also met the content of notice requirements described in Dingess/Hartman. After issuance of the above-described notice, and opportunity for the Veteran to respond, February 2011 and August 2012 supplemental statements of the case (SSOCs) reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. While the Board recognizes that the current record is based on a partially rebuilt claims file due to the unfortunate fact that the Veteran's original claims file was lost, apparently by the AMC, following the March 2010 remand, the case was remanded by the Board in August 2011 for the specific purpose of determining if the Veteran's original claims file could be obtained. The record, as memorialized in a November 2011 memorandum completed by the AMC, reflects extensive efforts to obtain the original claims file, to no avail. Letters in November 2010 and November 2011 informed the Veteran of the fact that the original claims file had been lost, and asked him to provide any copies of pertinent records or correspondence in his possession. In December 2010, the Veteran indicated that he no longer had any medical records and he did not respond to the November 2011 letter. On this record, the Board finds that there has been substantial compliance with the Board's prior remand directives, and that no further RO/AMC action in this regard is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The record does contain reports from VA examinations that include commentary and opinion addressing the matter at issue-that is, whether there is a relationship between service and current disability-and the Board finds the reports from these examinations, in their totality, to be adequate to adjudicate the issue on appeal. Also of record and considered in connection with the appeal is the transcript of the August 2013 Board hearing, as well as various written statements provided by the Veteran, and by his representative, on his behalf. Specifically as regards the Board hearing, it is pointed out that in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2013 hearing, the undersigned enumerated the issue on appeal. The Veteran provided testimony regarding the in-service shell fragment wound that he asserted resulted in the claimed eye disability as well as the current nature of his claimed disability, to include its post-service manifestations. The undersigned also held the record open for the submission of additional evidence. Neither the Veteran nor his representative asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the August 2013 hearing. As such, the Board finds that, consistent with Bryant, there has been compliance with the duties set forth in 38 C.F.R. 3.103(c)(2), and the hearing is legally sufficient. Given the missing records, to include the service treatment reports (STRs), VA has a heightened duty to assist the Veteran in development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO/AMC met this heightened duty here, as they have advised the Veteran of the lack of availability of his original claims file, informed him of the alternative forms of evidence that can be developed to substantiate the claims, and otherwise conducted exhaustive efforts to obtain the Veteran's original claims file. No further AMC/RO action in this regard is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any matter herein decided, at this juncture. See Mayfield, supra (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Given the award of the CIB to the Veteran and combat related SFW injuries to his legs, for which service connection has been granted, the provisions of 38 U.S.C.A. § 1154(b), which provide a relaxed evidentiary standard of proof to determine service connection, are applicable in this case. See Collette v. Brown, 82 F.3d 389 (1996). For Veterans such as the claimant in the instant case who have engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. At the outset, the Board reiterates, as noted above, that, in this fire-related case, it appears that the Veteran's service treatment records have not been available for review, and that, unfortunately, some documents previously of record have been irretrievably lost when the claims file was lost and rebuilt. The Board is aware that, where, as here, some records are lost due to no fault of the Veteran, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare, 1 Vet. App. at 367. The Board's analysis of the Veteran's claim for service connection has been undertaken with these heightened duties in mind. The Veteran's central argument in connection with the current claim is that while serving on combat duty in Korea, he sustained a shell fragment wound to the face/eyes, and that he is entitled to service connection for eye disability residual to such injury. Unfortunately, however, no competent, probative evidence supports the claim. As noted in the March 2010 Board decision, in a final June 1970 rating decision (not of record), the RO denied service connection for a SFW to the face because there was no in-service evidence of the injury and no medical evidence of residuals of a SFW to the face,. The Veteran filed a claim to reopen service connection for a SFW to the face in April 2004, and the Board found that reports of August 2006 and April 2008 VA examinations (currently of record) reflecting findings/diagnoses of right eye cornea scar, bilateral cataracts, pterygium in the right eye, and limited vision in the right eye were sufficient to reopen the claim. Of significance to the adjudication of the reopened claim is the fact that, in connection with the April 2008 VA eye examination, the examiner did have the benefit of review of the STRs as the medical history noted on the reports from this examination refer to an August 1952 service discharge examination which was said to show uncorrected vision in both eyes to 20/15 with clear cornea. It was noted that the Veteran's cornea scar in the right eye was "not related to any activity in military service." The examiner offered that the low vision in the right eye shown at that time was possibly related to a 1985 cerebrovascular accident. The report of an August 2012 VA eye examination, which document review of the rebuilt claims file (that does not contain the Veteran's STRs), reflects that the examiner recorded the Veteran's reported history of sustaining a SFW to the face during service in Korea in 1952. Following the examination, the examiner opined that it was less likely than not that the Veteran had eye disability related to the claimed in-service injury. Instead, he found that the Veteran's vision loss was related to a [non-service related] dense cataract in the right eye. There is no medical evidence or opinion of record contradicting any conclusion reached by either VA examiner on the question of whether there exists a medical nexus, or relationship, between a current eye problem and the alleged in-service SFW, and there is otherwise no medical evidence even suggesting such a relationship. As for the Veteran's own assertions, and those of his family members, the Board acknowledges that these individuals, as laypersons, are certainly competent to provide evidence of matters within their personal knowledge-to include the occurrence of in-service injury, as well as to with respect to existence, and continuity, of eye problems. See e.g., Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran has asserted experiencing a shell fragment wound to the face/eyes during service, despite the absence of service records documenting such an injury. Moreover, in hearing testimony, the Veteran's wife stated that when she testified that, when she married the Veteran in 1953, the year shortly after his discharge from service, he had healing facial wounds; and his daughter testified that he recounted to her his in-service injuries. The Veteran also testified that he was getting treatment for what he described as "scar tissue" before he was diagnosed with cataracts. The Board finds no reason to question the truthfulness of any such assertions. Nonetheless, however well meaning, to whatever extent the Veteran, his wife, daughter, and/or representative attempt to establish, on the basis of lay assertions, alone, that the Veteran has a current eye disability resulting from an in-service SFW-the matter upon which this claim turns-such assertions provide no persuasive support for the claim. With regard to these lay assertions, the Board emphasizes that the matter of the medical etiology of eye disability for which service connection is sought is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the identified individuals neither the Veteran or his wife, daughter, or representative are shown to have appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion as to the etiology of any current eye disability. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As such, in this appeal, lay assertions of medical etiology-and, more specifically, medical nexus to service-have no probative value. Accordingly, the Veteran can neither support his claim, nor counter the medical opinions of record on the basis of lay assertions, alone. For the foregoing reasons, the Board concludes that the claim for service connection for eye disability residual to a shell fragment wound to the face/eyes must be denied. In reaching the decision to deny this claim, the Board has carefully considered the applicability of the benefit-of-the-doubt doctrine. Unfortunately, however, as no competent, probative evidence supports a finding of service connection for the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for eye disability residual to a shell fragment wound to the face/eyes is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs